Citation Nr: 0123751
Decision Date: 09/28/01 Archive Date: 10/02/01
DOCKET NO. 95-10 685 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for
asthma.
REPRESENTATION
Appellant represented by: Mary A. Royle, Attorney
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The veteran served on active duty from January 1962 to
January 1963.
By a decision entered on December 9, 1999, the Board of
Veterans' Appeals (Board) determined that new and material
evidence had not been submitted by the veteran since entry of
its June 1964 decision, denying service connection for
asthma, so as to permit him to reopen such claim. An appeal
of the Board's December 1999 decision was thereafter taken to
the United States Court of Appeals for Veterans Claims
(Court), but prior to its disposition of the veteran's
appeal, the Board in March 2000 denied the veteran's motion
to vacate its December 1999 decision and, by its order of
July 2000, denied the veteran's motion for reconsideration of
its December 1999 decision.
The Court in its order, dated in February 2001, denied the
veteran-appellant's motion to amend his notice of appeal to
include review of the Board's July 2000 denial of his motion
for reconsideration. The Court did, however, accept the
veteran's motion as a timely notice of appeal of the July
2000 denial of his motion for reconsideration. The Secretary
of Veterans Affairs-appellee moved the Court by an unopposed
motion in March 2001 to remand and stay proceedings in the
matter of the appeal of the Board's December 1999 decision.
The basis of the Secretary's motion was that a remand was
required due to a change in the law brought about by the
passage of the Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), and the
Court's decision in Holliday v. Principi, 14 Vet. App. 280
(2001), which interpreted the provisions of the VCAA as
potentially applicable to all claims for benefits from the
Department of Veterans Affairs (VA). The Court by its order,
dated in March 2001, granted the Secretary's unopposed
motion, thereby vacating the Board's decision of December 9,
1999, in its entirety.
Following the return of the case to the Board, the attorney
who represented the veteran before the Court was contacted by
Board personnel in writing in May 2001 to determine whether
she would continue to represent the veteran before VA. In
response, such attorney in correspondence, dated in June
2001, indicated she would continue to represent the veteran
before VA and she furnished documentation, signed by the
veteran, appointing her as the veteran's legal
representative. Also received by the Board in August 2001
was a brief from the veteran's attorney, as well as
additional documentary evidence and a waiver of initial
consideration by the RO.
FINDINGS OF FACT
1. By its decision of June 1964, the Board denied
entitlement of the veteran to service connection for
bronchial asthma.
2. A claim to reopen was filed in August 1976, which the VA
Regional Office (RO) in New York, New York, denied by its
rating decision of September 1976; notice of the action taken
was provided to the veteran later in September 1976, but
notice of his appellate rights is not shown to have been
furnished to the veteran in connection with the September
1976 denial action.
3. Since entry of the Board's decision in June 1964, denying
service connection for bronchial asthma, the evidence added
to the record, at least in part, bears directly and
substantially upon the specific matter under consideration,
is not duplicative or cumulative of previously submitted
materials, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to decide fairly the merits of the claim
to reopen.
CONCLUSIONS OF LAW
1. The Board's decision in June 1964, denying service
connection for bronchial asthma, is final. 38 U.S.C.
§ 4004(b) (1958); 38 C.F.R. § 19.5 (1964).
2. The RO's decision of September 1976, denying the
veteran's claim to reopen for service connection for asthma,
is not final in the absence of appropriate notice of his
appellate rights. 38 U.S.C.A. § 4005(c) (1970); 38 C.F.R.
§ 3.104, 19.118, 19.153 (1976)
3. Since entry of the Board's decision in June 1964, denying
service connection for bronchial asthma, new and material
evidence to reopen the previously denied claim has been
presented. 38 U.S.C.A. § 5108 (West 1991); Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West Supp. 2001); 66 Fed. Reg. 45,620
(August 29, 2001) (to be codified at sections including
38 C.F.R. §§ 3.102, 3.159 and 3.326), 38 C.F.R. § 3.156
(2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
By its decision, dated June 30, 1964, the Board considered
the issue of the veteran's entitlement to service connection
for bronchial asthma and determined that the veteran's asthma
pre-existed his entrance onto active duty and was not
aggravated by service. The Board's decision is thus final.
38 U.S.C.A. § 7103, 7104 (West 1991 and Supp. 2001);
38 C.F.R. § 20.1100(a) (2000).
A claim to reopen was thereafter received by the RO in August
1976, and the RO by its rating decision of September 1976
denied such claim on the basis that new and material evidence
had not been presented to reopen the previously denied claim.
By correspondence, dated September 24, 1976, the RO advised
the veteran of the denial of his claim to reopen for asthma.
Absent within such correspondence or as an attachment thereto
was notice to the veteran of his right to appeal the RO's
denial to the Board, in violation of current and then
existing legal authority. 38 C.F.R. § 3.103(e) (1976);
38 C.F.R. §§ 3.103(b), 19.25 (2000); see Parham v. West, 13
Vet. App. 59 (1999). The presumption of administrative
regularity as to the mailing to the veteran of notice of his
appellate rights, see Woods v. Gober, 14 Vet. App. 214
(2000), is therefore of no consequence in this instance. As
a result, the undersigned finds that finality did not attach
to the RO's September 1976 denial of the veteran's claim to
reopen for service connection for asthma. See 38 U.S.C.A.
§§ 5104, 7105 (West 1991 and Supp. 2001).
Received by the RO in August 1993 was a VA Form 21-526,
Veteran's Application for Compensation or Pension, and
attachments thereto, in another attempt by the veteran to
reopen his previously denied claim of entitlement to service
connection for asthma. In connection therewith, the veteran
has alleged that, while his asthma pre-existed his entrance
onto active duty, it was aggravated beyond normal progression
during his period of military service. In light of the
foregoing, the question presented by this appeal is whether
that evidence submitted since entry of the most recent final
denial, that of the Board's decision in June 1964, is new and
material.
The United States Court of Appeals for the Federal Circuit in
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), rejected the
test for determining the materiality of evidence originally
set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)
(evidence was deemed "material" when there was a reasonable
possibility that the additional evidence presented, when
viewed in the context of all the evidence, both new and old,
would change the outcome of the claim) in favor of the test
outlined in 3.156(a); that is, whether the newly presented
evidence is so significant that it must be considered to
decide fairly the claim.
Since Hodge, reviewing a final decision based on new and
material evidence became potentially a three-step process.
See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). The
Court in Elkins held that the two-step process set forth in
Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for the
reopening of claims had become a three-step process under the
holding of the Federal Circuit in Hodge.
The three-step process for review of finally adjudicated
claims enumerated in Elkins was as follows: The Secretary
must first determine whether new and material evidence has
been presented under 38 C.F.R. § 3.156(a); second, if new and
material evidence has been presented, immediately upon
reopening the Secretary must determine whether, based upon
all the evidence and presuming its credibility, the claim as
reopened is well grounded pursuant to 38 U.S.C. § 5107(a);
and third, if the claim is well grounded, the Secretary may
evaluate the merits after ensuring the duty to assist has
been fulfilled.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to decide
fairly the merits of the claim. 38 C.F.R. § 3.156(a).
It is noteworthy that a significant change in the law was
effectuated during the pendency of this appeal.
Specifically, on November 9, 2000, the President of the
United States signed into law the VCAA. Among other things,
this law eliminated the concept of a well-grounded claim,
thereby further changing the Elkins standard. It also
redefined and expanded the obligations of VA with respect to
the duty to assist, and superseded the decision of the Court
in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub
nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6,
2000) (per curiam order), which had held that VA cannot
assist in the development of a claim that is not well
grounded. This change in the law is applicable to all claims
filed on or after the date of enactment of the VCAA, or filed
before the date of enactment and not yet final as of that
date. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000).
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
As well, changes to the Code of Federal Regulations were made
in response to the VCAA, as made effective November 9, 2000,
except the changes to 38 C.F.R. § 3.156(a), the second
sentence of 38 C.F.R § 3.159(c), and those involving
38 C.F.R. § 3.159(c)(4)(iii), were made effective
prospectively for claims filed on or after August 29, 2001.
See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).
As the veteran's claim to reopen was pending when the
aforementioned changes to the law and regulations were made
effective, he is entitled to consideration of his claim under
the version of the law or regulation most favorable to him.
Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board has
considered both the old and new legal authority pertaining to
the VA's duty to assist and finds that the VCAA is more
favorable to the veteran as it provides additional
protections, and it will therefore be applied in this case.
Karnas, supra.
Under the applicable changes in the law and regulations, VA
has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim. Here,
the veteran has been duly notified by prior actions of the RO
undertaken in connection with its development of the claim to
reopen herein at issue of the requirements for reopening of a
previously denied claim. In this regard, pertinent
information was furnished to the veteran in the statement of
the case provided to him in February 1995. Based on the
foregoing, VA has no outstanding duty to inform the veteran
that any additional information or evidence is needed
regarding the issue of whether new and material evidence has
been submitted to reopen the previously denied claim. Also,
it is noted that VA has a duty under the VCAA to assist the
veteran in obtaining evidence necessary to substantiate his
claim, but in this instance he has not referenced any missing
or other evidence that might aid him or may otherwise affect
the outcome of the question now before the Board.
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
appellant are to be avoided). VA has satisfied its duties to
notify and to assist the appellant, and, as such, further
development requiring expenditure of VA resources is not
warranted.
In view of the foregoing, and inasmuch as the undersigned
herein finds wholly in favor of the veteran in terms of the
question presented as to the newness and materiality of the
evidence, no possibility of prejudice to the veteran is found
were the Board to proceed to adjudicate the issue now on
appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993);
VAOGCPREC 16-92 (O.G.C. Prec. 16-92).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (2000).
A pre-existing injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38
C.F.R. § 3.306(a) (2000).
Evidence on file at the time of entry of the Board's decision
in June 1964 consisted, in pertinent part, of a medical
report of March 1962 from the veteran's private treating
physician; service medical records and other records compiled
by the service department; a certificate of a private
attending physician, dated in May 1963; the report of a VA
medical examination performed in December 1963; and a report
of June 1964 from the VA's Chief Medical Director.
The evidence submitted since entry of the June 1964 decision
includes a copy of an annual health examination record
compiled during the veteran's period of school attendance
from 1950 to 1961; duplicate copies of service medical and
other records compiled by the service department; a medical
report of May 1976 from a private treating physician; various
written statements from the veteran; and a report, dated in
January 2001, from a private physician who was asked by the
veteran's attorney to review pertinent records of the veteran
and furnish a medical opinion.
Of the evidence submitted since entry of the June 1964
decision, the undersigned herein addresses only the medical
report of January 2001 that was provided by a private
physician who is the Director of the Division of Allergy and
Immunology at a private medical facility. Contained within
such report are statements from the physician, to the effect
that the veteran's bronchial asthma existed prior to his
period of military service, but was aggravated during
military service. Such physician therein cites various
previously compiled medical records, many of which are
contained within the veteran's claims folder, as well as
references several medical texts or articles, in support of
his opinions.
The undersigned finds that the January 2001 medical report
embodies competent medical evidence consisting of a medical
opinion holding that the veteran's asthma pre-existed his
entrance onto active duty and underwent an in-service
aggravation. Such opinion does not duplicate any previously
submitted materials and is not cumulative thereof. Also, it
is so significant that it must be considered in order to
fairly decide the merits of the veteran's claim. In sum, the
January 2001 opinion is found to constitute new and material
evidence, so as to permit a reopening of the claim for
service connection for asthma most recently denied by final
decision in June 1964. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156. In view of the foregoing, there is no need to
discuss whether the other evidence submitted is likewise new
and material, as the claim will be reopened solely on the
basis of aforementioned statement from the private physician.
ORDER
New and material evidence has been presented to reopen the
veteran's previously denied claim of entitlement to service
connection for asthma. To that extent alone, the appeal is
granted.
REMAND
Having determined that the veteran's claim for service
connection for asthma is reopened, the merits of the reopened
claim may be evaluated only after ensuring that the VA's
duty-to-assist obligation has been satisfied. In view of the
changes brought about by the VCAA and the corresponding
regulations, further development, as set forth below, is
deemed to be in order.
Specifically, the RO has not been afforded the opportunity of
undertaking those actions necessary to ensure compliance with
the notice and duty-to-assist provisions contained in the new
law and regulations with respect to the claim herein
reopened. Nor has the veteran been apprised of the VCAA
provisions and corresponding regulatory changes that may have
applicability to the issue herein presented, or of the
evidence needed to substantiate his reopened claim for
service connection for asthma. He therefore may have been
denied the opportunity to submit all applicable evidence or
to formulate appropriate argument on appeal to the Board. It
thus would be potentially prejudicial to the veteran were the
Board to proceed to issue a merits-based decision at this
time with respect to the claim to reopen. See Bernard,
supra.
The undersigned also notes that further evidentiary
development regarding the veteran's reopened claim is needed.
In this regard, it is observed that several of the reports
referenced by a private physician in his April 2001 report as
to post-service medical treatment received by the veteran are
absent from the claims folder. Moreover, further actions to
obtain evidence of the post-service status of the veteran's
asthma and to ascertain its current existence are found to be
in order. Lastly, additional medical opinion is needed,
particularly in light of the statement offered by a medical
professional in April 2001 that the demonstration of post-
service improvement of the veteran's asthma was supportive of
the conclusion that his asthma was aggravated in service by a
variety of triggers.
Inasmuch as further medical examination and opinion are found
to be advisable, the veteran is hereby advised of the
importance of appearing for such an evaluation. In that
vein, the veteran's attention is directed to the following:
Sec. 3.655 Failure to Report for
Department of Veterans Affairs
Examination.
(a) General. When entitlement or
continued entitlement to a benefit cannot
be established or confirmed without a
current VA examination or reexamination
and a claimant, without good cause, fails
to report for such examination, or
reexamination, action shall be taken in
accordance with paragraph (b) or (c) of
this section as appropriate. Examples of
good cause include, but are not limited
to, the illness or hospitalization of the
claimant, death of an immediate family
member, etc. For purposes of this
section, the terms examination and
reexamination include periods of hospital
observation when required by VA.
(b) Original or reopened claim, or
claim for increase. When a claimant
fails to report for an examination
scheduled in conjunction with an original
compensation claim, the claim shall be
rated based on the evidence of record.
When the examination was scheduled in
conjunction with any other original
claim, a reopened claim for a benefit
which was previously disallowed, or a
claim for increase, the claim shall be
denied.
38 C.F.R. § 3.655 (2000).
Accordingly, on the basis of the foregoing, this matter is
REMANDED to the RO for the following actions:
1. The RO should review the claims file
and ensure that all notification and
development actions required by the VCAA
and corresponding regulatory changes are
completed as to the veteran's reopened
claim of entitlement to service
connection for asthma. In particular,
the RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the VCAA (to be codified as amended at
38 U.S.C. §§5102, 5103, 5103A, and 5107),
as well as the recently established
regulations, are fully complied with and
satisfied.
2. The RO should contact the veteran in
writing through his attorney for the
purpose of advising him of the evidence
needed to substantiate his reopened claim
of entitlement to service connection for
asthma. Such evidence may be of a lay or
medical variety, including but not
limited to employment or retirement
medical examinations; medical evidence
from hospitals, clinics and private
physicians by which or by whom the
veteran may have been treated for asthma
postservice; pharmacy prescription
records; or insurance examinations.
3. In addition, the veteran should be
contacted in writing through his attorney
for the purpose of requesting that he
provide a listing of the names and
addresses of those VA and non-VA medical
professionals or institutions who have
evaluated and/or treated him for asthma
prior to, during, and after his discharge
from military service, inclusive of the
treatment afforded by Doctors J. H.
Cannon and G. Lolski and at the Mary
Imogene Bassett Hospital and any
successor institution. The approximate
dates of any such evaluation or treatment
should also be provided, to the extent
possible.
Thereafter, the RO should, after
obtaining proper authorization, obtain
copies of evaluation and treatment
records not already on file from those
medical professionals or institutions
referenced in connection with the
aforementioned request, including but not
limited to complete clinical records
pertaining to the veteran's treatment by
Doctors J. H. Cannon and G. Lolski and at
the Mary Imogene Bassett Hospital and any
successor institution. Any and all VA
treatment records not already on file
must be obtained regardless of whether in
fact the veteran responds to the
foregoing request. Such records, once
obtained, must then be added to the
claims folder.
4. Thereafter, the veteran is to be
afforded a VA medical examination by
pulmonologist for the purpose of
evaluating the veteran's asthma, if any.
The veteran's claims folder in its
entirety is to be furnished to the
examiner prior to any evaluation of the
veteran for use in the study of this
case. Such examination is to include a
review of the veteran's history and
current complaints, as well as a
comprehensive clinical evaluation. Any
indicated diagnostic studies must also be
accomplished if deemed warranted by the
examiner. All established diagnoses
relating to the veteran's respiratory
system must be fully set forth.
It is requested that the pulmonologist
offer a professional opinion, with full
supporting rationale, as to each of the
following:
(a) Is there X-ray, clinical,
or laboratory evidence to
establish the presence of the
veteran's asthma currently or
at any time postservice?
(b) Is it at least as likely as not
that the veteran's pre-existing
asthma underwent an increase in
severity in service, such as might
constitute an aggravation of the
disorder or did any asthma
symptomatology in service represent
merely an acute or temporary
worsening of the symptoms of the
preservice disability?
(c) If asthma underwent an increase
in severity during service as
opposed to a temporary exacerbation,
is any such increase due to the
natural progress of the disease?
(d) If the physician agrees or
disagrees with any opinion of
record, he is invited to offer
any such opinion and furnish
the reasons for any such
agreement or disagreement.
(e) In formulating a response
to the foregoing, it is
requested that the physician
utilize any italicized standard
of proof in his/her reply and
use the appropriate letter
[(a), (b), (c), (d)] to
correspond with the question(s)
posed.
5. Following the completion of the
foregoing actions, the RO should review
the examination report. If such report
is not in complete compliance with the
instructions provided above, appropriate
action should be taken to return such
examination for any and all needed
action.
6. Lastly, the RO should readjudicate
the veteran's reopened claim of
entitlement to service connection for
asthma, by aggravation, on the basis of
all the evidence on file and all
governing legal authority, as well as the
provisions of the VCAA and the
corresponding regulatory changes, and
38 C.F.R. § 3.655, as applicable. In the
event that the veteran fails to appear
for the examination, the letter notifying
him of the date and time of the
examination and the address to which the
letter was sent should be included in the
claims folder. If the benefit sought on
appeal is not granted, the veteran and
his attorney should be provided with a
supplemental statement of the case which
should include a summary of the evidence
and the law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should then be allowed for a response,
before the record is returned to the
Board for further review.
The veteran need take no action until otherwise notified.
The purpose of this remand is to obtain additional
evidentiary and procedural development. No inference should
be drawn regarding the final disposition of the claim in
question as a result of this action.
The law requires full compliance with all orders in this
remand. See Stegall v. West, 11 Vet. App. 268 (1998).
Moreover, this claim must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the
Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals